DMY & Associates Pty Ltd ACN 615 507 956 as Trustee for the DMY & Associates Unit Trust ABN 71 705 286 206 Trading as DMY & Associates (“we”, “us”,”our”) and the party named at Personal Details in the Engagement Letter – (“you”, “your”).
- Pursuant to these terms and conditions you acquire a non-exclusive right to use the materials on these terms and conditions for as long as you remain up to date with the Consulting / Practice Management fees.
- If you are an accounting firm, you are authorised to sub-license the materials to you clients only. You remain wholly responsible for the use of the materials by your clients and must ensure that their use of the materials accords with these terms and conditions as if they were bound by them.
- If you are not an accounting firm, you are not authorised to sub-license the materials to any third party.
- You agree that you will not use the materials in any way whatsoever except as specified in these terms and conditions.
- You remain wholly responsible for the use of the materials by your personnel and must ensure that their use of the materials accords with these terms and conditions as if they were bound by them.
- Your Consulting / Practice Management services commences on the day that you accept these terms and continues for twelve monthly payments at the rate itemised on the Engagement Letter
- Your Consulting / Practice Management services will continue after the minimum term on a month-to-month basis, unless terminated by either party in accordance with clause 9.
- We observe national and state public holidays and your closure day/s. In addition we are closed for 3 weeks during the Christmas and New Year Period. If your scheduled Consulting / Practice Management service day falls on either of these days, we will endeavour to make up for time during the term of the engagement.
- By accepting these terms you agree to pay the monthly fee, as set out in the Engagement Letter or as varied from time to time.
• You agree to comply with all applicable laws in relation to your Consulting / Practice Management services and your use of the materials
• You agree are solely responsible for the use, supervision, management and control of the materials by you and your personnel or if you are an accounting firm, your clients, and agree to protect the materials at all times from misuse, damage, destruction or any form of unauthorised use.
• Your Consulting / Practice Management services will not be provided until the first monthly payment has been made.
• You will not:
- copy or reproduce the materials by any means or in any form without prior written consent;
- to edit, modify or merge the materials with any other third party materials or software without our prior written consent; or
- reverse compile or directly or indirectly allow or cause a third party to reverse compile the whole or any part of the materials; or
- remove any copyright or other similar notices on the materials.
5 INTELLECTUAL PROPERTY
- You agree that the materials contain proprietary information that is owned or licensed by us, and is protected by applicable intellectual property and other laws, including but not limited to copyright.
6 LIABILITY AND INDEMNITY
- The materials are provided to you at your own risk and you indemnify and release us to the fullest extent permitted by law from all claims resulting directly or indirectly from our provision of the materials to you.
- Without prejudice to our other rights under these terms and conditions, you agree to indemnify and keep us indemnified against any loss, damages, expenses and costs incurred or suffered as a result of any of the following;
- a breach of these terms and conditions by you; and
- a willful or negligent act or omission by you.
- All express or implied warranties, representations, statements, Terms and conditions relating to the materials and these terms and conditions are excluded to the maximum extent permitted by law.
- Nothing in these terms and conditions excludes, restricts or modifies any term, condition, warranty, right or remedy implied or imposed by any statute or regulation which cannot lawfully be excluded, restricted or modified, including the Competition and Consumer Act 2010 (Cth.) and corresponding Australian state or territory legislation, which contain provisions including implied conditions and warranties that apply to these terms and conditions or the materials (implied terms).
- If there are any implied terms and we are able to limit your remedy for a breach of such implied term, then our liability for breach is limited to one or more of the following at our option:
- in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
- in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
- Subject to our obligations with respect to implied terms, to the maximum extent permitted by law, we exclude all liability for all claims under or relating to these terms and conditions.
- You are not authorised to assign this service without our prior written consent.
- Any unauthorised assignment by you of this service is not effective.
- You must not grant a security interest in this service or the materials to any third party.
8 PAYMENT TERMS
- You agree to pay the services specified in Engagement Letter, as varied from time to time.
- The Consulting / Practice Management service fee will be debited to your nominated account or credit card commencing on the date your Consulting / Practice Management service commences.
- If you have elected to pay your Consulting / Practice Management service Fee by direct debit you must:
- ensure sufficient funds are available in the nominated account each month to meet the monthly Consulting / Practice Management service Fee; and
- advise us if the nominated account details change or the account is closed, and make alternative arrangements for payment if this occurs
- If you have elected to pay your Consulting / Practice Management service fee monthly, your nominated account or credit card will be debited for that amount commencing on the date your Consulting / Practice Management service commences and on the anniversary of each month thereafter, until terminated in accordance with clause 9.
- Cheques and EFT payments will not be accepted for payment of the monthly Consulting / Practice Management service fee.
- The monthly Consulting / Practice Management service fees stated in the Engagement Letter are inclusive of GST and are in Australian dollars.
- If your monthly Consulting / Practice Management service fee is not paid on the due date, we reserve the right to cancel your Consulting / Practice Management services and access to any materials until such time as all Membership fees have been paid.
- We reserve the right to recover from you all costs associated with your failure to pay the Consulting / Practice Management service fee (including legal costs on a solicitor/own client basis).
- Subject to clause 10, you may only terminate your Consulting / Practice Management service prior to the expiry of the minimum term if you become subject to medical incapacity, for which you produce supporting documentation to our satisfaction from a qualified medical practitioner certifying that you are permanently sick or incapacitated.
- Subject to clause 10, if you cancel your Consulting / Practice Management services prior to the expiry of the minimum term you remain liable for the Consulting / Practice Management service fees for the remainder of the minimum term. No refunds will be made if you terminate your Consulting / Practice Management services before the expiry of the minimum term and you have paid the whole of that Consulting / Practice Management service fee.
- After the expiry of the minimum term you may terminate your Consulting / Practice Management services on 30 days’ written notice to us.
- Where your Consulting / Practice Management services are terminated, any fees that are unpaid at the date of termination must be paid and we may take action to recover the outstanding payments.
- We may terminate your Consulting / Practice Management services immediately if you:
- breach any term of these terms and conditions;
- fail to pay your Consulting / Practice Management service fee;
- if you are a natural person, you take any step which results or may result in you becoming an insolvent under administration as defined in section 9 of the Corporations Act 2001 (Cth.); or
- if you are a corporation, you are or take any step which results or may result in you becoming an externally administered body corporate as defined in section 9 of the Corporations Act 2001 (Cth.).
- We reserve the right at any time to vary the Consulting / Practice Management service fees, these terms and conditions, any aspect of our products and services or your Consulting / Practice Management services. We will give you at least one months’ prior written notice of this occurring.
- You will be taken to have agreed to a variation if you do not provide written notice within 14 days of receiving notice of the variation that you wish to terminate your Consulting / Practice Management services. Failure to terminate your Consulting / Practice Management services will be taken as authorisation for us to vary any direct debits to your credit card or bank account accordingly.
11 CHANGE OF DETAILS
- You agree to advise us in writing immediately if there is any change to the personal details or payment details specified in the Engagement Letter.
12 GOVERNING LAW
- These terms and conditions will be governed under and construed in accordance with the laws in force in the state of Victoria and the parties irrevocably submit to the jurisdiction of the courts of Victoria.
- As an authorised representative of the company specified on the front of this form, I agree that any information(written or verbal) which is disclosed is confidential and that relates to any other member’s assets, business, financial affairs, business transactions, business methods, records, forms, charges, trade secrets or know-how, including without limitation its dealing with third parties that is not otherwise public knowledge, will be treated as private and confidential and I will take all reasonable steps necessary to preserve its confidentiality.
- In these terms and conditions:
- Claim means in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent.
- Materials mean all of our software, information contained on our website, our products and services, and documents provided to you in connection with your Membership or otherwise.
- Consulting / Practice Management service fee/services means the fees specified in the Engagement Letter or other fees as charged by us to you and as varied from time to time.
- Personnel means in relation to a party means the party’s officers, office-holders, employees, agents and contractors
15 MERGE / SELL TERMS & CONDITIONS
The following Terms & Conditions are in addition to above for this service:
1 Term and Termination
- The term of the agreement shall commence of the date of the signed Engagement Letter and continue in full force until such time that a successful Contract of Sale has been signed, unless terminated by either party upon at least 30 days prior written notice
- For the term of the agreement, we shall have exclusive right to introduce prospective sellers to you who are not already known by you
- Should you bring a prospective buyer to us, an outside agreement shall be made for final commission to be paid upon contract of sale being signed
- You accept that we will endeavour to ensure all potential buyers have signed a Non-Disclosure Agreement (“NDA”) before receiving any information on your firm
- You will accept that we will endeavour to ensure no staff of your firm are made aware of your firm being for sale until written notice has been made to us
To the extent that the law allows:
- We are not liable for any loss or damage including loss of data and/or profits, however caused (including negligence), which you may directly or indirectly suffer in connection with your use of our service
- Any condition or warranty which would otherwise be implied into these terms and conditions is hereby excluded
- We will take legal action against any potential buyer who has signed a NDA that you can show has caused loss of data or profits to your firm
- During the term of the agreement, you will not attempt to do business with, or otherwise solicit any potential buyers found or otherwise referred by us for the purpose of circumventing, the result of which shall be to prevent us from realising our fee
- If such circumventing shall occur you will pay us our fee as per your signed Engagement Letter with us
- You warrant that the information given to us to produce the Summary and Detailed report is true and accurate
7 Fees and Payment Terms
- Upon signing your Engagement Letter, you agree to the fees and payment terms stipulated in your Engagement Letter
- DMY & Associates Fee is calculated on the Sale Price and does not take into account any employee entitlements that have been agreed come off the sale price nor any other discounts that have been agreed to from the Sale Price.